Delhi High Court
Const. Raghav Kumar Singh vs Union Of India (Uoi) And Ors. on 22 March, 2007
Author: T Thakur
Bench: T Thakur, S Aggarwal
ORDER
T.S. Thakur, J.
1. In this petition for a writ of mandamus, the petitioner prays for a direction to the respondent to pay him the salary and other benefits for the period 9th March, 1998 to 22nd December, 2004, during which he remained out of service on account of an order of dismissal passed against him.
2. The petitioner is serving in the Border Security Force as a constable. He was convicted for an offence punishable under Sections 40 and 22(e) of the BSF Act and sentenced to dismissal from service. He filed a statutory petition against the said order of dismissal before the Director General of BSF under Section 117 of the BSF Act. The said petition was upon consideration dismissed by the Director General on 7th October, 1997. Aggrieved by the said order, the petitioner filed CWP No. 39390/1997 before the High Court of judicature at Allahabad who by an order dated 11th April, 2002 allowed the said petition and remanded the matter back to the Director General for awarding a lesser punishment upon the petitioner. Upon re-consideration, the Director General once again upheld the petitioner's dismissal from service by his order dated 25th July, 2002. The petitioner therefore had to knock at the doors of the Allahabad High Court for the second time who by an order dated 12th October, 2004 directed the Director General to reconsider the matter in terms of its previous directions. In compliance with the said directions, the Director General passed an order on 9th December, 2004 awarding a lesser punishment of 89 days imprisonment in Force custody. The said punishment order has been accepted by the petitioner as there is no challenge to the same either before the High Court of Allahabad or before this Court. What the petitioner has assailed in the present petition, however, is an order dated 17th February, 2005 issued by the Commandant of his Unit whereby the period during which he had remained out of service has been regularized as under:
1. Earned Leave 93 days w.e.f. 20.05.97 to 20.08.97
2. HPL 200 days w.e.f. 21.08.97 to 08.03.98
3. LOL 2480 days w.e.f. 09.03.98 to 22.12.04
(without pay) (AN)
3. The petitioner's case is that he is entitled to salary for the entire period during which he had remained out of service on account of the order of dismissal which was according to him unjustified. A mandamus directing the respondents to release the salary for the said period with other benefits due to him has therefore been prayed for.
4. We have heard learned Counsel for the parties at some length and perused the record. Rule 29 of the BSF Rules empowers the authority who sets aside the order of dismissal or removal to provide for the treatment to be given to the person whose dismissal, removal or retirement has been set aside. The Rule reads as under:
29. Passing of orders relating to absence from duty. - Where an order of dismissal or of removal or of retirement of a person subject to the Act is set aside, the officer or authority setting aside such dismissal, removal or retirement shall pass such orders as may be necessary in respect of the period of absence from duty of the person whose dismissal, removal or retirement has been set aside.
5. In the present case, the order of dismissal of the petitioner was set aside by the Director General upon reconsideration of the matter substituting the punishment by a lesser punishment as indicated earlier. In the circumstances, the question as to what would happen to the period during which he had remained absent from duty on account of the said order of dismissal would have logically arisen before the Director General himself. The Director General could and indeed ought to have addressed that question keeping in view the fact that the order of dismissal passed against the petitioner was being set aside by him and the period during which the petitioner had remained absent had to be suitably provided for. The impugned order passed by the Commandant of 92nd Battalion, BSF directing regularization of the period of absence in the manner extracted above is, in that view, clearly without jurisdiction especially when learned Counsel for the respondents was unable to draw our attention to any provision in the Act or the Rules under which the Commandant of the Battalion could assume to himself the powers logically vested in the Director General who had set aside the dismissal order.
6. We accordingly allow this petition in part and to the extent that the impugned order mentioned above shall stand quashed with the direction that the Director General of the BSF Force Headquarter, New Delhi shall examine the question of regularization of the petitioner's period of absence from duty in terms of Rule 29 of the BSF Rules, 1969 and pass appropriate orders on the same expeditiously but not later than 3 months from the date a copy of this order is served upon him. The parties are left to bear their own costs.
7. Order dusty.
